124. Briefing Memorandum From the Assistant Secretary of State for East Asian and Pacific Affairs (Holbrooke) to Secretary of State Vance 1

Legal Questions re Treaty Termination with the ROC

You have asked four linked questions on termination of the Mutual Defense Treaty with Taiwan:

—Does the Treaty cease to exist at the time of announcing recognition of the PRC as the sole legal government of China?

—If the Treaty does not lapse at that moment, with whom is the treaty applicable, i.e. could the argument be made that it applies to the PRC?

—On the day of announcing recognition of the PRC and de-recognition of the ROC, could the President state he is giving notice to terminate the Treaty in accordance with its termination provisions, so that it would actually continue in effect with the ROC for twelve months after de-recognition because of the Treaty-specified termination procedure?

—If the President chooses to terminate the Treaty in accordance with its termination provision, does he need the advice and consent of the Senate?

Harvey Feldman, the ROC Country Director, working informally with the head of the Treaties Division in L, has come up with the following answers which I believe are sound and sufficient for our purposes. We could get a fully staffed out legal position involving several other people but this probably would take 1–2 weeks or more and the answers though longer, would not be greatly different.2

1. The best legal argument is that the Treaty lapses automatically at the moment the ROC is de-recognized. A defensive alliance assumes that the partner has the status of a sovereign state. The status of the ROC after normalization might be sufficient for establishment or maintenance of agreements of a technical nature, but not one which necessarily involves sovereign defense. The International Law Commission [Page 506] of the UN has recognized that severance of diplomatic relations even with an ongoing sovereign state “might be incompatible with the implementation of certain kinds of political treaty such as political alliance.” After Normalization, the GROC would no longer be recognized by the U.S. as having the requisite legal capacity to enter into a collective defense treaty with the U.S. In this legal view, the fate of the MDT is an automatic consequence of de-recognition, rather than any action by the Executive branch.

2. Although the automatic lapse theory is the most plausible and legally compelling, it nevertheless would be possible for the President to announce on N Day that he is taking action to terminate the Treaty in accordance with its provisions for termination after twelve months’ notice. In that case, he could also argue that the Treaty continues in effect with the ROC for the next twelve months, despite de-recognition. This is not as compelling a legal argument as the foregoing, but it is one which can be made. We would then be in the anomalous position of being obligated to discuss common defense with a government which we viewed as not having the legal standing to discuss with us questions of defense of sovereignty. Undoubtedly this would furnish grounds for legal debate, but a court challenge is extremely unlikely. The PRC view of such a position is another matter.

3. If the Treaty continues in effect after de-recognition of the ROC, it nevertheless cannot be held to apply to the PRC since it was concluded with the ROC after October 1, 1949 and since the entire legislative history makes clear it was intended to apply to the government on Taiwan. In general, even in the case of treaties concluded with the ROC before October 1, 1949 and intended to apply to all of China, the U.S. would have to positively agree to applicability to the PRC for the treaties to remain in force and be so applicable.

4. With respect to the Constitutional power of the President to terminate treaties, L states that (a) neither the Constitution nor law makes any special provision for treaty termination; and (b) the precedents are mixed: past Presidents have terminated treaties both with and without the advice and consent of the Senate or the Congress. L believes Senatorial or Congressional participation is not a legal requirement. In the case of the MDT, it could also be argued that in giving advice and consent to a Treaty which includes a procedure for termination, and not specifying Congressional involvement in that procedure, the Senate has agreed in advance to termination by the sole act of the President.

  1. Source: Carter Library, National Security Affairs, Staff Material, Far East, Oksenberg Subject File, Box 26, Brownell (Herbert) Study: 6–10/78. Secret; Sensitive; Nodis. Drafted by Feldman on June 24. Former Attorney General Herbert Brownell was advising the Department of State on the legal issues surrounding the normalization of relations with the People’s Republic of China.
  2. The phrases “involving several other people” and “or more” were inserted by hand by an unknown person.